When parties hire an expert witness in preparation for trial, the expert will typically compile a report that analyzes the facts of the case and the relevant law.  An expert witness report is used by judges and litigating parties to help understand the issues surrounding the case, and often provides the basis for expert witness testimony if and when the case goes to trial.  Expert witness reports are critical to litigation, so it is disheartening to read the JDJ Journal story about law professor James Feinerman plagiarizing most of an expert report on the Chinese government from popular online information hub, Wikipedia.  Feinerman, hired as an expert for a case involving illegal disclosure of trade secrets, copied 13 of his 19-page report almost word-for-word from a Wikipedia entry on the Chinese government, and in doing so has damaged not only his professional reputation but the legal practice as a whole.

In the summer of 2012, technology giants Apple and Samsung engaged in a fierce and highly publicized legal battle in which Apple successfully sued its South Korean competitor for patent violations stemming from designs of Samsung smart phones and tablets. On November 21, 2013, Apple scored another victory when a federal jury, with help from a damages expert witness, awarded the company with a $290 million damage award for lost profits caused by Samsung’s patent infringement.

Apple vs Samsung Legal Battle Continues

After Apple won its patent infringement lawsuit in 2012, the jury awarded the company $1.05 billion from the defeated Samsung.  Upon review of the jury award, U.S. District Court Judge Lucy Koh reduced the award to $600 million based on jury error in calculating damages for patent infringement leading to the creation of 13 Samsung products.  Over the last several months, the two companies have continued to fight for a correct damage calculation, leading to the November 21^st ruling granting Apple an additional $290 million.

The award is less than the $400 million vacated by Judge Koh after the initial trial, but significantly more than the $52 million Samsung had argued for.  The primary difference is accounted by the award to Apple for lost profits the company allegedly suffered, which Samsung argued its competitor was not entitled to.  The jury also felt that Apple was entitled to a large share of Samsung’s profits generated by sale of products that infringed on Apple patents.

How an Apple Expert Witness Influenced Damages

When Judge Koh reduced Apple’s $1.05 billion award by over $400 million, she did so because the jury had not clearly calculated the effect of Samsung’s patent infringement.  When the jury determined that Samsung had infringed on Apple patents to create its smartphones and tablets, the damage calculation had to specifically identify the cost such infringement had on Apple – a difficult task because it is impossible to positively confirm the amount of Apple’s lost profits or attribute what portion of Samsung’s profit came at Apple’s expense . Because Apple’s damage award required a jury to quantify economic projections the calculation required the support of expert knowledge.

In the resulting damages trial, Apple attorneys hired damages expert witness Julie Davis who showed the federal jury that it could attribute $178 million of Samsung’s $230 million in profits to reduced operating costs that were a direct result of using Apple’s patents.  Ms. Davis, a certified public accountant, provided the jury with clear evidence of Samsung’s benefit at Apple’s expense, and withstood vigorous cross-examination that questioned her methodology and economic calculations.

Jury forewoman Colleen Allen credited Ms. Davis’ testimony with helping the jury members resolve a dispute about the $178 million in operating costs being included in the damage award, and praised Apple’s witness for her clear explanation of damage calculation and her presence on the witness stand.  Juror Barry Goldman-Hall echoed the forewoman’s sentiment by saying that Julie Davis convinced most of the jury to include the full $178 million into its calculations, which helped the jurors generate the $290 final damage figure awarded to Apple.

A Samsung appeal is all but certain given the significantly high damage award, and the two companies will continue the issue in a separate infringement trial scheduled for next March;  however, for now it appears Apple’s use of a damages expert witness has paid off.  For more information, the case is Apple Inc. v. Samsung Electronics Co. Ltd., 11-cv-01846, U.S. District Court, Northern District of California (San Jose).  Details, write ups, and the case itself can be found by clicking here.

Apple Award Highlights Value of Damages Expert Witness

Calculating damages in a lawsuit can become complex, particularly when the figure includes lost profit estimations or attributions of one company’s profit to actions that harmed its opposition.  Hiring an expert witness who knows how the specific type of damages requested are calculated can be an important asset to getting the full value of a lawsuit.  Damages expert witnesses will explain to judges or juries the process of putting a dollar value on losses, and help a party demonstrate that damages without clear cut economic support can be quantified.

Whether the damages alleged are not economic in nature – such as pain and suffering or emotional distress – or the economic value requires projection and conjecture – such as lost profits or missed business opportunity – a damages expert witness can help quantify losses and maximize the value of litigation.  As the recent Apple decision highlights, a damages expert witness can have a significant positive impact by helping a jury understand complex award calculations and proving that an injured party is entitled to compensation for losses that are not clearly quantified.

Thaddeus Jimenez, a man who spent 16 years in prison for a murder he did not commit, recently had his 2011 civil judgment against the City of Chicago upheld.  Mr. Jimenez, released in 2009, filed a lawsuit against Chicago claiming the police investigation was inadequate and resulted in his wrongful conviction.  Largely due to testimony from a police expert witness, Mr. Jimenez was awarded $25 million.  After two years of appeal, the United States Seventh Circuit Court upheld Mr. Jimenez’s expert witness testimony and large settlement.

Expert Witness Testimony the Cornerstone of Jimenez Verdict

Playing a significant role in the Jimenez civil lawsuit against the City of Chicago was the testimony of Gregg McCrary, a former FBI agent with 25 years of experience in criminal investigations.  Mr. McCrary spent 17 years specifically investigating violent crimes, and testified to a number of violations of investigative practice by the Chicago police during the course of the murder case against Mr. Jimenez.

During the 2011 civil lawsuit, Mr. McCrary identified ways the police “conducted a substandard investigation into the murder … that resulted in the wrongful conviction of [Mr. Jimenez] and left the true killer … on the streets free to kill again.”  Saying that the police failed to follow basic police investigation techniques by focusing too much on Jimenez and ignoring physical evidence about the actual shooting, McCrary’s expert witness testimony identified inadequate police work and proved instrumental in Mr. Jimenez’s successful civil suit for damages.

City of Chicago Appealed Use of Police Expert Witness

Expert witness testimony is permissible when a qualified expert reviews a fact situation and offers an opinion on whether or not the actions of parties involved were in compliance with the standards expected of their profession.  For example, doctors often testify in medical malpractice lawsuits by analyzing whether or not the physician(s) treating a patient acted in accordance with the requirements of the medical profession.  Expert witnesses may not offer legal opinion about liability, but their testimony is often used to help juries understand complicated scenarios in order to make a decision about legal responsibility.

On appeal of Mr. Jimenez’s $25 million judgment, the City of Chicago argued that Mr. McCrary’s testimony offered a legal conclusion because his opinions spoke to whether or not the police acted reasonably.  Reasonableness, argued the City, requires legal analysis, and, because McCrary’s expert testimony questioned a series of judgments by the investigating officers, the expert report “amounted to legal conclusions that were not admissible.”

In civil lawsuits, a plaintiff must show that the defendant acted unreasonably by presenting a series of facts, and the City’s appeal alleged that Mr. McCrary’s expert testimony exceeded simple analysis of the facts by speaking directly to whether the police acted reasonably.  By claiming the police acted unreasonably, the City argued, Mr. McCrary’s report spoke to the conclusion rather than evidence that supported a conclusion.  The difference may seem semantic, but, with $25 million on the line, it is far from trivial.

Seventh Circuit Upholds Expert Testimony on Police Behavior

In upholding Mr. Jimenez’s civil judgment, the Seventh Circuit Court disagreed with the City of Chicago’s argument.  Finding that Mr. McCrary’s testimony “was within the bounds of proper testimony for a police practice’s expert,” the Seventh Circuit declined to overturn the significant judgment.  Although the City of Chicago’s theory was sound – experts are not permitted to provide legal conclusion – it failed to recognize the difference between the expert analysis of a doctor’s actions and the judgment calls by police during the course of a police investigation.

A police expert analyzes the decision-making process, and must evaluate whether or not judgment calls to pursue, or ignore, evidence were reasonable in light of the circumstances of the investigation.  Although McCrary stated that the actions of the Chicago PD were unreasonable, he did not offer a legal conclusion – he offered one that analyzed the facts of the police investigation.  When analyzing actions, such as surgical procedures, it is easy to say a doctor did it right or wrong, however, when analyzing decisions the analysis focuses more on whether or not parties acted reasonably.  Mr. McCrary looked at the facts – police ignoring evidence, focusing on Jimenez – and claimed that the decisions that created these facts were unreasonable.

In this case, the Seventh Circuit determined that Mr. McCrary, a police expert witness who reported on the reasonableness of investigative decisions and strategy, did not offer legal conclusion.  As such, his expert testimony was admissible, and the judgment in Mr. Jimenez’s favor was affirmed – making the wrongfully convicted victim a very rich man.

Metadata, or the data behind electronically compiled data, lurks in every electronic document and has created some interesting challenges that attorneys, law firms, judges, and legal ethicists as the profession seeks to keep pace with technology.    Even experienced attorneys are well served by consulting with a metadata expert early in the litigation process to assist with discovery and serve as an expert witness should the need arise.

The definition of metadata differs depending on how technical the definer, but an over-simplified treatment of the term includes not only information automatically attached to documents by software systems (such as time stamps), but also user created data that is hidden from obvious glance (such as track-changes, comments, or other notations embedded into the document).

For a full understanding of metadata, consult this well written and informative article on the subject from Bloomberg Law Reports: A White Paper on Metadata

While automatic metadata can reveal a history of a document that may be relevant to legal professionals, it is hidden user data that presents interesting challenges to unwary attorneys and law firms representing parties with important information contained in electronic documents.  Whether concerned about issues of attorney / client confidentiality or conducting a thorough pre-litigation discovery process, legal professionals must become increasingly familiar with metadata in order to avoid costly errors.

Metadata and Confidentiality

The nature of metadata makes it difficult to detect, leaving firms, attorneys, and clients susceptible to inadvertent leaks of confidential information.  As we witnessed in former CIA Director Petraeus’ embarrassing fall from grace, investigators have the capability of tracking even carefully concealed hidden data.  Although Petraeus and his mistress Paula Broadwell carefully covered their indiscretion with false email accounts and unsent documents, FBI investigators tracked the hidden metadata to reveal communications both parties thought were well hidden.

If the director of the Central Intelligence Agency can be exposed by careful digging through data he did not know exposed him, imagine, then how easy it is for attorneys and clients to overlook the procedures necessary to hiding communications from metadata detection.  Attorneys and clients who do not take proper steps to redact and protect confidential information in track changes, pdf conversions, or confidential email accounts leave themselves vulnerable to exposing privileged communications to opposing counsel, and, in the case of lawyers and firms, the ethical punishments associated with this type of carelessness.

The expansive reach of metadata detection is still not properly understood by members of the legal profession, and, as such, neither are the procedures necessary to protect the unwilling dissemination of privileged information.  Although metadata is sometimes difficult to keep track of, careful attention to redaction procedures should be able to protect confidential information – leaving members of the legal profession without legitimate cause for accidental violation of attorney/client privilege caused by missed metadata review.  Attorneys and law firms need to adjust to the challenges presented by electronic documentation, and take the steps to educate themselves about metadata in order to prevent unintentional breach of attorney client privilege.

Metadata in Litigation

Modern litigation relies extensively on the discovery and analysis of a variety of electronic documents that compile, explain, dissect, disseminate, and manipulate all sorts of data that may be relevant to the issues presented in the lawsuit.  Lawsuits, particularly large scale suits involving corporations, will require parties to sort through thousands of electronic documents including emails, word files, excel spreadsheets, and calendars that contain information that may be pertinent to the issue at the center of the suit.  As electronic documentation becomes more diverse, it becomes increasingly difficult to conduct discovery that encompasses all the information relevant to the case.

Just as tedious as carefully identifying and redacting all the information contained in metadata is the task of finding it in the data provided by opposing counsel.  The purpose of discovery in litigation is to sort through all the potentially important documents to find relevant pieces of information to build an argument, and if attorneys do not find a way to identify information contained in metadata they may miss a critical element to their case and expose themselves to malpractice accusations from unsatisfied clients.  Just as ignorance of metadata is not an excuse for breach of confidentiality, it is similarly unconvincing as a reason for failing to find information important to a lawsuit.

As attorneys and firms are faced with increasingly high volumes of electronic documents to analyze during the discovery phase, they must be able to identify the potential for critical information contained in metadata in order to ensure their review does not overlook something important to the case. Pre-discovery discussions about the reasonable production of metadata by both parties, and an awareness of what types of documents may contain relevant metadata can be critical to conducting a sufficiently thorough discovery review.

Whether creating confidentiality or e-discovery concerns, the rise of metadata can give attorneys and law firms additional headaches not previously faced by the legal profession.  Although the vast majority of metadata is meaningless to parties involved in litigation and to attorney/client communications, every large collection of electronic documents contains potentially relevant information hidden in metadata that needs to be accounted for.  As attorneys and law firms adjust to electronic compilation, storage, and dissemination of data, their technical acumen might be just as critical as their legal ability.  Metadata professionals and expert witnesses are available to assist when attorneys and law firms struggle with an issue present in almost every modern lawsuit.